You Buy It, You Break It: A Comment on Dispersing the Cloud

Perzanowski, Aaron, Washington and Lee Law Review

Personal property occupies a precarious position in the digital marketplace.1 In the analog world, we have relied on stable, predictable property interests in our documents, media, and devices to guarantee us a reasonable degree of control over those objects and a reasonable degree of autonomy in our interactions with them. But in our increasingly digital environment, a cluster of interrelated developments have conspired against meaningful property interests in the digital stuff that makes up so much of our lives. As a result, rather than making our own choices about how we use and dispose of those digital objects, we often find ourselves dependent on the permission and good will of IP rights holders, technology platforms, and service providers.

So how did this change come about? First, as both mass media distribution and personal record keeping shift away from shipping and storing hardcopies to shuffling bits around the network, the things we've grown accustomed to owning-physical copies-are disappearing. As a practical matter, we stand in a very different relationship to a file in our desk drawer than we do to a file on a cloud server. Legal rights aside, one is in our immediate possession and control; the other is remotely stored and our interactions with it are mediated by third party technology. Second, restrictive end user licenses and terms of use intentionally undermine consumer ownership and control. Often, those terms insist that digital goods are not sold, but merely licensed-a declaration that is at odds with both established consumer expectations and retailers' own marketing claims.2 Other times, those terms grant service providers and other online intermediaries generous rights to use, modify, monetize, and retain user-generated content.3 In both cases, contractual language-often in the absence of meaningful consent-is leveraged to shift the balance of power between individuals and service providers who draft these typically unread and often unreadable terms.4 Third, digital rights management and control over embedded software mean that, even for the physical devices that we buy and presumably own, manufacturers can assert ongoing control over how and even whether we can use them.5 Even though we possess and own these physical devices, the software that defines their operation often serves another master.

These concerns are not merely abstract or theoretical. The past few years have shown us increasingly frequent glimpses into a future without ownership. We see it when companies like Autodesk use their license terms to prohibit the resale of authorized physical copies of software.6 We see it when Amazon remotely deletes ebooks-copies of George Orwell's 1984, no less-from the devices of its customers.7 We see it when Keurig coffeemakers, relying on optical sensors, refuse to brew off-brand coffee in open mutiny against their owners.8 We see it when John Deere insists that farmers who pay tens of thousands of dollars for the company's tractors don't own the software embedded in them, code necessary to make even the simplest of repairs.9 We see it when Google-owned Nest bricks thousands of Revolv home automation hubs simply because the company lost interest in supporting the product.10

And, as Daniel Martin powerfully argues, we see the erosion of ownership when users are prevented from destroying the files they store in the cloud.11 Just like possession, alienation, and use, the right to destroy fits comfortably in the bundle of rights we typically extend to property owners.12 Whether we conceptualize destruction as a freestanding right or a logical extension of the right to exclude, a person who owns a thing can-with some important exceptions-destroy it.13 Businesses and individuals destroy sensitive paper records all the time. Independent legal obligations might caution against zealous shredding-impending civil litigation or a criminal investigation, for example-but otherwise, the law of property won't intervene. …

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